The decision of the European Parliament of 18 November 1999 amending its Rules of Procedure is in part suspended. Until judgment is given on the merits, the European Parliament is ordered to authorise the agents of the OLAF to have access to the offices of the applicant Members only with the consent of those Members
On 28 April 1999 the Commission adopted the decision establishing the European Anti-fraud Office, the OLAF. The OLAF is responsible for conducting administrative investigations for the purpose of fighting against fraud, corruption and any other illegal activity detrimental to the financial interests of the Communities.
On 25 May 1999 the European Parliament and the Council adopted a regulation concerning investigations conducted by the OLAF. It provides inter alia that the OLAF may conduct investigations within the institutions, the latter being informed when the OLAF's employees conduct an investigation on their premises or when they consult a document or request information held by those institutions.
An interinstitutional agreement concluded between the Parliament, the Council and the Commission provides that each institution is to adopt common rules consisting of the implementing measures required to ensure the smooth operation of the investigations carried out by the OLAF within those institutions.
On 18 November 1999 the Parliament adopted a decision amending its Rules of Procedure, making it possible to bring into force the rules provided for by the interinstitutional agreement.
Willi Rothley and 70 other Members of the European Parliament challenged the legality of that decision, claiming that it should be annulled. Furthermore, they claimed that the Court should order the suspension of the operation of the decision and/or adopt any other interim measure in order to ensure the protection of Members of the Parliament.
The President of the Court of First Instance considered whether the conditions for granting interim measures had been satisfied, after finding that the contested decision was capable of producing legal effects going beyond the mere internal organisation of the Parliament's work. He did not exclude the possibility that the investigations thus permitted might compromise the immunity afforded to each Member by the Protocol on the Privileges and Immunities of the European Communities of 8 April 1965. In addition, he did not exclude the possibility of the contested decision's being of direct and individual concern to the applicants. In those circumstances, the application for interim measures was held to be admissible.
In carrying out that examination, the judge hearing the application for interim measures first assessed the scope of the immunity afforded to Members of the European Parliament. He considered that the provisions of the Protocol are intended to safeguard their independence in carrying out their duties and to ensure that the Parliament has freedom of operation. He also considered that those provisions are intended to prevent pressure (threats of arrest or legal proceedings) being brought to bear on them when the Parliament is in session. At the end of his interpretation of the relevant provisions, the President of the Court of First Instance did not exclude the possibility that the Protocol protects the Members of the Parliament against certain actions by the institutions or Community organs, such as the OLAF, since those actions might be preliminary to legal proceedings before a national court and might hinder the internal working of the Parliament.
The President of the Court of First Instance then considered whether the contested decision contains provisions which ensure that the immunity of Members will not be compromised; he found that the decision of the Parliament does not contain any specific guarantee with regard to respect for the rights of Members when the OLAF exercises its powers of investigation. In particular, the employees of the Office could have access to the Members' offices within the Parliament, in their absence or without their consent, in order to obtain certain information.
The condition relating to urgency is considered to be satisfied since, if interim relief is not granted, the Members would be at risk of suffering serious and irreparable damage.
Finally, the President of the Court of First Instance weighed the interest of the applicant Members in obtaining the interim measures requested against the interest of the Parliament, supported by the Council and the Commission, in maintaining the contested decision. In that regard, he considered that while it is unarguably in the Community's interest to prevent and to combat fraud and any other illegal activity detrimental to the financial interests of the Community, it is equally in the Community's interest that the Members of the Parliament should be able to carry out their activities with the assurance that their independence will not be compromised.
Consequently, in order to ensure that the applicants' interests are protected in the interim while at the same time preserving as best possible the interests of the Community, the President of the Court of First Instance first orders suspension of the operation of those provisions of the Parliament's decision which require the applicants to cooperate with the OLAF and to inform the President of the Parliament or the Office and, second, orders the Parliament to inform the Members concerned without delay of any imminent measure of the Office to be taken concerning them and to authorise employees of the Office to have access to those Members' offices only with their consent.
N.B. This order is without any prejudice whatsoever to the decision to be made by the Court of First Instance on the substance of the case. The Court will give its judgment in due course.
For media use only - unofficial document which does not bind the Court of Justice. Available in: French, English and German. The full text of the Order is available in French and German.
For additional information please contact Fionnuala Connolly, phone: (00352) 4303 3355, fax: (00352) 4303 2731.